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Cesar Mateo v. M. Gundrum et al

November 3, 2011

CESAR MATEO, PLAINTIFF,
v.
M. GUNDRUM ET AL., DEFENDANTS



The opinion of the court was delivered by: Gary L. Sharpe District Court Judge

MEMORANDUM-DECISION AND ORDER

I. Introduction

Plaintiff pro se Cesar Mateo brings this action under 42 U.S.C. § 1983alleging retaliation for filing multiple grievances, and violations of his due process and Eighth Amendment rights. (See Compl., Dkt. No. 1.) In a Report-Recommendation and Order (R&R) filed August 30, 2011, Magistrate Judge George H. Lowe recommended that the defendants' motion to dismiss be granted in part and denied in part.*fn1 (See generally R&R, Dkt. No. 32.) Pending are defendants' objections to the R&R. (Dkt. No. 33.) For the reasons that follow, the R&R is adopted in its entirety.

II. Standard of Review

Before entering final judgment, this court routinely reviews all report and recommendation orders in cases it has referred to a magistrate judge. If a party has objected to specific elements of the magistrate judge's findings and recommendations, this court reviews those findings and recommendations de novo. See Almonte v. N.Y. State Div. of Parole,No. 04-cv-484, 2006 WL 149049, at *6-7 (N.D.N.Y. Jan. 18, 2006). In those cases where no party has filed an objection, or only a vague or general objection has been filed, this court reviews the findings and recommendations of the magistrate judge for clear error. See id.

III. Discussion

Defendants raise two specific objections to Judge Lowe's R&R: (1) Mateo failed to plead sufficient facts to establish a retaliation claim against Gundrum and Martin, and (2) Mateo should not be granted leave to replead certain claims. (See generally Dkt. No. 33.) The court will address each of these objections in turn.

A. Retaliation claims

Defendants aver that Mateo has not alleged adverse action or causation-two of the three elements of a retaliation claim, see, e.g., Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004)-because the "loss of commissary and recreation privileges for 13 days and loss of one work task" is de minimis, and thus does not constitute adverse action. (See Dkt. No. 33 at 1-4.) In support of this position, defendants cite a number of cases which state that "the temporary loss of prison privileges does not constitute adverse retaliatory action." (See Dkt. No. 33 at 2-3.) While defendants' argument may be true, the court is unpersuaded-at this juncture-in light of two distinguishing factors: (1) as defendants note, the majority of the cases cited were decided on summary judgment; and (2) the sole case decided on a motion to dismiss predated the Supreme Court's decision in Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009), which further

explicated the "plausibility" standard.

In light of that standard, and the Second Circuit's caution against premature dismissal of potentially meritorious retaliation claims, the court concludes Mateo has plead "factual content that allows [it] to draw the reasonable inference that the defendant[s] [are] liable for the misconduct alleged." See id. Accordingly, Judge Lowe's recommendation that the defendants' motion be denied with respect to the retaliation claims against Gundrum and Martin is adopted.

B. Leave to replead

Defendants next object to Judge Lowe's recommendation that the court grant Mateo leave to replead his claims against Martuscello, the conspiracy claims, and the Eighth Amendment claims against Gundrum and Martin. (See Dkt. No. 33 at 4-6.) These objections are without merit.

Being that this is the first time that Mateo has been alerted to the deficiencies in his Amended Complaint, leave to replead is appropriate, and within the court's discretion to grant. See Fed. R. Civ. P. 15(a)(2). As such, Mateo may file a Second Amended Complaint-if he so chooses-consistent with Judge Lowe's R&R. The Second Amended Complaint must be filed within thirty (30) days of the date of this order and strictly comply with the requirements of, inter alia, N.D.N.Y. L.R. 7.1(a)(4) and Fed. R. Civ. P. 11(b). If plaintiff elects to file ...


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